STATE OF RAJASTHANversusTHAKUR SINGH

                        [2014] 8 S.C.R. 18

A                    STATE OF RAJASTHAN
                                 v.
                           THAKUR SINGH
                . (Criminal AppElal No.357 of 2005)

B                         JUNE 30, 2014
          [MADAN B. LOKUR AND S.A. BOBDE, JJ.]

        Evidence Act, 1872 - s. 106 - Principle laid down u/s.
   106 - Application of - Held: Section 106 provides that when
C any fact is especially within the knowledge of any person the
   burden of proving that fact is upon him - Burden of proving
   the guilt of an accused is on the prosecution - However,
   certain facts pertaining to a crime which can be known only
 · to the accused, or are virtually impossible for the prosecution
D to prove, ,need to be explained by accused and if he does not
   do so, then it is a strong circumstance pointing to his guilt
   based on those facts - On facts, wife died an unnatural death
   in the room occupied by her and her husband, the cause of
   the unnatural death was known to husband, however, he made
E no attempts to explain the unusual situation - No evidence
   that anybody else had entered their room or could have
   entered their room - Thus, principle u/s.106 applicable to the
   facts of the case and there is a very strong presumption that
   'wife' was murdered by hus!Sand - High Court completely
F overlooked the principle uls. 106, cursorily dealt with the
   evidence on record and arrived at a perverse conclusion in
   law and set aside the order of conviction of the husband -
   Thus, order passed by the High Court set aside and that of
   the trial judge restored - Penal Code, 1860 -. s. 302.
G
        According to the prosecution, the respondent-
    husband confined himself, his wife 'DK' and their
    daughter inside the room and bolted it from within. He did
    not open the door for the whole day. The door had to be

H                                18
      STATE OF RAJASTHAN v. THAKUR SINGH                   19


 forced open and 'DK' was found dead in a room occupied          A
 by her and the respondent. The respondent was caught
 by his brothers and relatives. An FIR was lodged alleging
 that the respondent had killed 'DK'. The trial court
 convicted the respondent for an offence punishable
 under Section 302 IPC and sentenced him to life                 B
 imprisonment and fine. Hpwever, the High Court
 acquitted the respondent. Hence, the instant appeal.

     Allowing the appeal, the Court

      HELD: 1. Section 106 of the Evidence Act, 1872             C
 provides, inter alia, that when any fact is especially within
 the knowledge of any person the burden of proving that
 fact is upon him. The burden of proving the guilt of an
 accused is on the prosecution, but there may be certain
 facts pertaining to a crime that can be known only to the       D
 accused, or are virtually impossible for the prosecution
 to prpve. These facts need to be explained by the
 accused and if he does not do so, then it is a strong
 circumstance pointing to his guilt based on those facts.
 [Paras 14, 22] [26-8-C; 29-C-D]                                 E

       2.1. Applying the aforesaid principle to the facts of
· the instant case, since 'DK' died an unnatural death in the
  room occupied by her and the respondent, the cause of
  the unnatural death was known to the respondent. There
  is no evidence that anybody else had entered their room        F
  or could have entered their room. The respondent did not
  set up any case that he was not in their room or not in
  the vicinity of their room while the incident occurred nor
  did he set up any case that some other person entered
  the room and caused the unnatural death of his wife. The       G
  facts relevant to the cause of 'OK's death were known
  only to the respondent, yet he chose not to disclose them
  or to explain them. The principle laid down in Section 106
  of the Evidence Act is clearly applicable to the facts of
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    20      SUPREME COURT REPORTS              [2014] 8 S.C.R.


A the case and there is, therefore, a very strohg
  presumption that 'DK' was murdered by the respondent.
  [Para 23) [29-D-G]

         2.2. It is not that the respondent was obliged to prove
8   his innocence or prove that he had not committed any
    offence. All that was required of the respondent was to
    explain the unusual situation, namely of the unnatural
    death of his wife in their room, but he made no attempt
    to do this. [Para 24) [29-G-H]

C      2.3. The High Court very cursorily dealt with the
  evidence on record and upset a finding of guilt by the trial
  court in a situation where the respondent failed to give
  any explanation whatsoever for the death of his wife by
  asphyxia in his room. Moreover, the very fact that all the
D relatives of the respondent turned hostile clearly gives
  room for suspicion and an impression that there is much
  more to the case than ·meets the eye. Even the
  complainant, who squarely blamed the respondent (in
  the FIR) for the murder of his wife, turned hostile to the
E extent of denying his relationship with the respondent.
  [Para 26) [30-C-D)

       2.4. The High Court expressed the view that since the
  prosecution did not produce 'GS' as its witness, its case
  ought to fail. 'GS' could not have added to the case of the
F prosecution. He had arrived on the fateful day after the
  respondent had locked himself, 'DK' and their ~hild in
  their room. He did .not even meet them on the fatefut day
  and was oblivious of the events that had taken place that·
  day. Therefore, producing him in the witness box would
G not have been of any consequence. [Para 27) [30-E-F]

        2.5. On a consideration of the facts of the case, the
    approach arrived at by the trial court was the correct
    approach under the law and the High Court was
H
      STATE OF RAJASTHAN v. THAKUR SINGH                  21


completely in error in relying primarily on the fact that A
since most of the material prosecution witnesses (all of
whom were relatives of the respondent) had turned
hostile, the prosecution was unable to prove its case. The
position in law, particularly Section 106 of the Evidence
Act was completely overlooked by the High Court making B •
it arrive at a perverse_ conclusion in law. The judgment
and order passed by the High Court is set aside and that
of the trial judge restored. The State should take the
necessary steps to apprehend the respondent so that he
can serve out the sentence awarded to him· by the trial C
court. [Paras 28, 29] [30-G-H; 31-A-C]

       Shambhu Nath Mehra v. State of Ajmer 1956 SCR 199;
  Trimukh Maroti Kirkan v. State of Maharashtra 2006 (7)
   Suppl. SCR 156: (2006) 10 SCC 681; Ganesh/al v. State
. of Maharashtra 1992 (2) SCR 502: (1992) 3 SCC 106 ;           D
  Dnyaneshwar v. State of Mahrashtra 2007 (4) SCR 248:
  (2007) 10 SCC 445 ; Jagdish v. State of Madhya Pradesh
  2009 (-14) SCR 727: (2009) 9 SCC 495:; Gian Chand v. State
  of Haryana (2013) 14 SCC 420; State of West Bengal v. Mir
  Mohammad Omar 2000 (2) Suppl. SCR 712: (2000) 8 SCC           E
  382 ; Mahend_ra Pratap Singh v. State of Uttar Pradesh 2009
  (2 ) SCR 1033: (2009} 11 SCC 334 - referred to.
                     Case Law Reference :
     1956 SCR 199               Referred to        Para 16      F
     2006 _(7) Suppl. SCR.156 .Referred to         Para 17
     1992 (2) SCR 502           Referred to       Para 18
     2007 (4) SCR 248 .         Referred to       Para 19       G
   · (2009) (14) ·scR 121       Referred to       Para 20
     (2013) 14 sec 420          Referred to       Para 21
     2000 (2) Suppl. SCR. 712 Referred to         Para 21
                                                                H
    22       SUPREME COURT REPORTS                 [2014] 8 S.C.R.


A        2009 (2) SCR 1033           Referred to         Para 25

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 357 of 2005.

        From the Judgment & Order dated 04.08.2004 of the High
B   Court of Rajasthan in D.B. Criminal Jail Appeal No. 500 of
    2001.

         Ruchi Kohli, Nidhi Jaswal for the Appellant.

         Nidhi for the Respondent.
c
         The Judgment of the Court was d~livered by

       MADAN B. LOKUR, J. 1. The question for consideration
  is whether the facts and circumstances of the case require the
D application of Section 106 of the Evidence Act, 1872 and if so,
  whether the respondent/accused is guilty of the murder of his
  wife Dhapu Kunwar. In our opinion, both questions need to be
  answered in the affirmative and the High Court rendered a
  decision, perverse in law, in acquitting Thakur Singh and
E reversing the decision of the Trial Court.

    The Facts

         2. According to the first information report (FIR) lodged by
    Himmat Singh (PW-2), the respondent/accused Thakur Singh
F   was married to Dhapu Kunwar and they had a daughter aged,
    about one year. Thakur Singh was working as a labourer or lorry
    driver in Ahmadabad. Since he was not feeling well, he was
    brought to the family home in Hingwania in Rajasthan on 25th
    February, 1999 where he stayed the whole day.
G        3. On 26th February, 1999 Thakur Singh's brother Bagh
    Singh (PW-3) was sent to fetch his brother-in-law Gotu Singh
    (~rother of Dhapu Kunwar) who then came to Hingwania. He
    seems to have stayed overnight and on 27th February, 1999
    Gotu Singh and Thakur Singh were together for most of the day.
H
      STATE OF RAJASTHAN v. THAKUR' SINGH                     23
              [MADAN B. LOKUR, J.]
  In the evening at abo.ut 4.30 p.m. on 27th February, 1999 Gotu    A
  Singh went to Gundli and st~yed' there overnight He came bacf<
  to Hingwa_nia the riext morning (28th February, 1999) at about
. 7.45 a.m.                                            ·

    4: However,. before Gotu Singh arrived in Hingwania on
                                                                    8
28th February, 1999 Thakur Singh took his wife Dhapu Kunwar
and their daughter inside a room and bolted it from within.
Thereafter, Himmat Singh and Gotu Singh went from Hingwania
by bus to Chantleriya to meet Thakur Singh's elder-brother
Shyam Singh (PW-1). While Gotu Singh did not return to
Hingwania, Himmat Singh returned along with Shyam Singh.            C
This was at about 4.30 p.m.

     5. Throughout the day Thakur Singh had locked himself up
in a ro~m along with Dhapu Kunwar and their daughter. Other
ladies in the house, namely, the wife ofJ3hag Singh, (Chanda        D
Kunwar PW-18) wife of Pratap Singh (PW-6) and (Pushpa
Kunwar PW-20) wife of Ram Singh (PW-7) tried to persuade
Thakur Singh to open the door of the room but he did not do
so. Later in the evening, after Himmat Singh returned with
Shyam Singh, they removed the 'kelu' from above the house           E
and it was then discovered that Thakur Singh had killed Dhapu
Kunwar. The door of the house was broken open and Thakur
Singh was caught and tied by his _brothers and other relatives.

      6. At about 6.15 p.m. on the s~me day, that is 28th
 February, 1999 Himmat Singh lodged an FIR in the police            F
 station giving the facts mentioned above. There is a positive
,assertion in the FIR that Thakur Singh haCl·killed Dhapu Kunwar.
 Soon after the FIR was re_gistered, the investigating officer
 Kuber Singh (PW-23) arrived at the place of the occurrence and
 took charge of the investigations and arrested Thakur Singh on     G
 the basis of the allegations made in the FIR.

 Proceedrngs in the Trial Court

     7. On completion of investigations, Kuber Singh filed a
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    24       SUPREME COURT REPQRTS               [2014) 8 S.C.R.


A charge sheet against Thakur Singh alleging the commission of
  offences punishable under Sections 302, 326 and 324 of the
  Indian Penal Code (IPC). The Upper District & Sessions Judge
  (Fast Track) Chittorgarh who heard the case bein~ Sessions
  Case No.90/2001 convicted Thakur Singh and found him guilty
B of an offence punishable under Section 302 of the IPC and
  sentenced him to undergo imprisonment for life and a fine of
  Rs.1000/-.
                                            -
         8. The Trial Judge found that the prosecution had examined
C as many as 25 witnesses. Subsequently, on the request of the
   Public Prosecutor another witness was called making a total
 ··of 26 prosecution witnesses. Of these, 14 were the immediate
   relatives of Thakur Singh and all of them turned hostile.

      9. The Trial Court found that some basic facts were
D nevertheless brought on record. These basic facts were that
  Dhapu Kunwar was the wife of Thakur Singh; she was lying
  dead in the room occupied by her and Thakur Singh, and Dr.
  Khem Chand Saini (PW-15) deposed that Dhapu Kunwar had
  some injuries on her person but the cause of her death was
E asphyxia and strangulation.

        10. The Trial Judge held, on the basis of the evidence on
  record, that no one except Thakur Singh could have caused the
  death of Dhapu Kunwar. He had confined her and their daughter
F inside a room and although no one saw him killing his wife,
  since the room was bolted from inside, he had not opened it
  for the whole day and the door had to be forced open, no one
  else could have caused her death. The Trial Judge found that
  there was nothing to suggest that any other person had entered
  Thakur Singh's room and there was no possibility of anybody
G else having caused Dhapu Kunwar's death by strangulation. It
  was also noted that Thakur Singh gave absolutely no
  explanation in his statement under Section 313 of the Code of
  Criminal Procedure as to how Dhapu Kunwar had died of
  asphyxiation inside their room.
H
      STATE OF RAJASTHAN v. THAKUR SINGH                      25
              [MADAN 8. LOKUR, J.].

Proceedings in the !:'igh Court                                     A

      11. Feeling aggrieved by the com~ict!on and sentence
  awarded by the Trial Court,. Thakur Singh preferred D.S.
, Criminal Jail Appeal No. 500 of 2001 in th~ High Court ot
  Rajasthan. By a judgment and order dated 4th August, 2004         8
  (under appeal), the High Court found no evidence to link Thakur
  Singh with the,death of Dhapu Kunwar. Accordin~ly, the appeal
  was allowed and he was acquitted of the charge; of an offence
  punishable under Section 302 of the IPC.

     12. After the analysis of the evidence, the High Court came    C
to the foltowing conclusions:-

      (a)    There is no evi.dence that anybody saw Thakur
             Singh entering his room where Dhapu Kunwar had
             been murdered. Also, no one saw him coming out         D
             from the room after the murder.

      (b)    There is no evidence that after allegedly having
             murdered Dhapu Kunwar, Thakur Singh came out
             of his room and was caught by his relatives and        E
             handed over to the police.

       (c)   There is no evidence that when Thakur Singh came
             out of his room he was in possession of any
             we~pon or that his clothes were stained with blood.
                                                                    F
     13. The High Court also concluded that the Trial Judge was
swayed by the idea that since Thakur Singh was the husband
of Dhapu Kunwar, therefore, there was every possibility that he
was in the house and he continued to remain in the house when
Dhapu Kunwar was murdered. The High Court concluded that            G
though this is a strong circumstance, there must be some
e.vidence in support of this circumstance and the best evidence
would be that of Gotu Singh .who was not produced by the
prosecution. Moreover, the main prosecution witnesses (who
happen to be the relatives of Thakur Singh) had turned hostile.
                                                                    H
    26          SUPREME COURT REPORTS                          [2014] 8 S.C.R.


A   Discussion and conclusion

        14. Questioning the decision of the High Court acquitting
    Thakur Singh, the State of Rajasthan has preferred this appeal.

          15. We find that the High Court has not at all considered
B   the provisions of Section 106 of the Evidence Act, 1872 1 • This
    section provides, inter alia, that when any fact is especially
    within the knowledge of any person the burden of proving that
    fact is upon him.

c        16. Way back in Shambhu Nath Mehra v. State of Ajmer2
    this Court dealt with the interpretation of Section 106 of the
    Evidence Act and held that the section is not intended to shift
    the burden of proof (in respect of a crime) on the accused but
    to take care of a situation where a fact is known only to the
o   accused and it is well nigh impossible or extremely difficult for
    the prosecution to prove that fact. It was said:

          "This [Section 101] lays down the general rule that in a
          criminal case the burden of proof is on the prosecution and
          Section 106 is certainly not intended to relieve it of that
E         duty. On the contrary, it is designed to meet certain
          exceptional cases in which it would be impossible, or at
          any rate disproportionately difficult, for the prosecution to
          establish facts which are "especially" within the knowledge
          of the accused and which he could prove without difficulty
F         or inconvenience. The word "especially" stresses that. It

    1.   106. Burden of proving fact especially within knowledge.-When any fact
         is especially within the knowledge of any person, the burden of proving
         that fact is upon him
                                         Illustrations
G
         (a) When a person does an act with some intention other than that which
         tile character and circumstances of the act suggest, the burden of proving
         that intention is upon him.
         (b) A is charged with travelling on a railway without a ticket. The burden of
         proving that he had a ticket is on him.
H   2.   1956 SCR 199.
      STATE OF RAJASTHAN v. THAKUR SINGH                       27
              [MADAN B. LOKUR, J.]

     means facts that are pre-eminently or exceptionally within       A
     his knowledge. If the section were to be interpreted
     otherwise, it would lead to the very startling conclusion that
     in a murder case the burden lies on the accused to prove
     that he did not commit the murder because who could
     know better than he whether he did or did not."                  B

     17. In a specific instance in Trimukh Maroti Kirkan v. State
of Maharashtra3 this Court held that when the wife is injured in
the dwelling home where the husband ordinarily resides, and
the husband offers no explanation for the injuries to his wife,       C
then the circumstances would indicate that the husband is
responsible for the injuries. It was said:

      "Where an accused is alleged to have committed the
      murder of his wife and the prosecution succeeds in leading
      evidence to show that shortly before the commission of D
      crime they were seen together or the offence takes place
      in the dwelling home where the husband also normally
      resided, it has been consistently held that if the accused
      does not offer any explanation how the wife received
      injuries or offers an explanation which is found to be false, E
      it is a strong circumstance which indicates. that he is
      responsible for commission of the crime."

    18. Reliance was placed by this Court on Ganesh/al v.
State of Maharashtra 4 in which case the appellant was
prosecuted for the murder of his wife inside his house. Since         F
the death had occurred in his custody, it was held that the
appellant was under an obligation to give an explanation for the
cause of death in his statement under Section 313 of the Code
of Criminal Procedur~. A denial of the prosecution case
coupled with absence of any explanation was held to be                G
inconsistent with the innocence of the accused, but consistent

3.   (2006) 1o sec 681.
4.   (1992) 3 sec 106.
                                                                      H
    28         SUPREME COURT REPORTS               [2014] 8 S.C.R.


A   with the hypothesis that the appellant was a prime accused in
    the commission of murder of his wife.

         19. Similarly, in Dnyaneshwar v. State of Maharashtra 5 this
    Court observed that since the deceased was murdered in her
B   matrimonial home and the appellant had not set up a case that
    the offence was committed by somebody else or that there was
    a possibility of an outsider committing the offence, it was for
    the husband to explain the grounds for the unnatural death of
    his wife.
c       20. In Jagdish v. State of Madhya Pradesh 6 this Court
    observed as follows:

          "It bears repetition that the appellant and the deceased
          family members were the only occupants of the room and
D         it was therefore incumbent on the appellant to have
          tendered some explanation in order to avoid any suspicion
          as to his guilt."

         21. More recently, in Gian Chand v. State of Haryana 7 a
    large number of decisions of this Court were referred to and
E   the interpretation given to Section 106 of the Evidence Act in
    Shambhu Nath Mehra was reiterated. One of the decisions
    cited in Gian Chand is that of State of West Bengal v. Mir
    Mohammad Omar8 which gives a rather telling example
    explaining the principle behind Section 106 of the Evidence Act
F   in the following words:

          "During arguments we put a question to learned Senior
          Counsel for the respondents based on a hypothetical
          illustration. If a boy is kidnapped from the lawful custody
G         of his guardian in the sight of his people and the
          kidnappers disappeared with the prey, what would be the
    5.   (2007) 1o sec 445.
    6.   (2009) 9 sec 495.
    7.   (2013) 14 sec 420.
H   8.   (2000) 8 sec 382.
     STATE OF RAJASTHAN v. THAKUR SINGH                       29
             [MADAN B. LOKUR, J:] .
    normal inference if the mangled dead body of the boy is A
    recovered.within a couple of hours from elsewhere. The
    query was made whether upon proof of the above facts an
    inference could be drawn that the kidnappers would have
    killed the boy. Learned Senior Counsel finally conceded
    that in such a case the inference is reasonably certain that B
    the boy was killed by the kidnappers unless they explain
    otherwise."

     22. The law, therefore, is quite well settled that the burden
of proving the guilt of an accused is on the prosecution, but C
there may be certain facts pertaining to a crime that can be
known only to the accused, or are virtually impossible for the
prosecution to prove. These facts need to be explained by the
accused and if he does not do so, then it is a strong
circumstance pointing to his guilt based on those facts.
                                                                    D
     23. Applying this principle to the facts of the case, since
Dhapu Kunwar died an unnatural death in the room occupied
by her and Thakur Singh, the cause of the unnatural death was
known to Thakur Singh. There is no evidence that anybody else .
had entered their room or could have entered their room. Thakur E
Singh did not set up any case that he was not in their room or
not in the vicinity of their room while the incident occurred nor
did he set up any case that some other person entered the
room and caused the unnatural death of his wife. The facts
relevant to the cause of Dhapu Kunwar's death being known F
only to Thakur Singh, yet he chose not to disclose them or to
explain them. The principle laid down in Section 106 of the
Evidence Act is clearly applicable to the facts of the case and
there is, therefore, a very strong presumption that Dhapu
Kunwar was murdered by Thakur Singh.                              G

     24. It is not that Thakur Singh was obliged to prove his
innocence or prove that he had not committed any offence. All
that was required of Thakur Singh was to explain the unusual
situation, namely, of the unnatural death of his wife in their room,
but he made no attempt to do this.                                   H
    30         SUPREME COURT REPORTS                [2014] 8 S.C.R.


A        25. Learned counsel for Thakur Singh referred to
    Mahendra Pratap Singh v. State of Uttar Pradesh 9 to contend
    that where two views are possible, one held by the Trial Court
    for acquitting the accused and the other held by the High Court
    for convicting the accused, the rule of prudence should guide
B   the High Court not to disturb the order of acquittal made by the
    Trial Court. This decision is not at all apposite.

         26. In our opinion, the High Court has very cursorily dealt
    with the evidence on record and has upset a finding of guilt by
C   the Trial Court in a situation where Thakur Singh failed to give
    any explanation whatsoever for the death of his wife by asphyxia
    in his room. Moreover, the very fact that all the relatives of
    Thakur Singh turned hostile clearly gives room for suspicion
    and an impression that there is much more to the case than
    meets the eye. Even the complainant, Himmat Singh who
D   squarely blamed Thakur Singh (in the FIR) for the murder of his
    wife, turned hostile to the extent of denying his relationship with
    Thakur Singh.
         I                                                          '

         27. The High Court expressed the view that since the
E   prosecution did not produce Gotu Singh as its witness, its case
    ougtft to fail. In our opinion, Gotu Singh could not have added
    to the case of the prosecution. He had arrived on the fateful day
    after Thakur Singh had locked himself, Dhapu Kunwar and their
    child in their room. He did not even meet them on the fateful
F   day and was oblivious of the events that had taken place that
    day. Therefore, producing him in the witness box would not have
    been of any consequence'.'

         28. On a consideration of the facts of the case we are of
    the opinion that the· approach arrived at by the Trial Court was
G   the correct approach under the law and the High Court was
    completely in error in relying primarily on the fact that since most
    of the material prosecution witnesses (all of whom were
    relatives of Thakur Singh) had turned hostile, the prosecution

H   9.   (2009) 11 sec 334.
      STATE OF RAJASTHAN v. THAKUR SINGH                      31
              [MADAN B. LOKUR, J.]
was unable to prove its case. The position in law, particularly     A
Section 106 of the Evidence Act was completely overlooked
by the High Court making it arrive at a perverse conclusion in
law.

Conclusion
                                                                    B
     29. The judgment and order passed by the High Court is
set aside and that of the Trial Judge restored. The State should
take the necessary steps to apprehend Thakur Singh so that
he can serve out the sentence awarded to him by the Trial
Court.                                                              c
     30. The appeal is allowed, as above.

Nidhi Jain                                        Appeal allowed.